Roundtable with Nabiel Ahmed & Matt Fregi

 Roundtable With Nabiel Ahmed and Matt Fregi - Transcript

Louis 00:08

This is Louis Goodman. I'm the host of the Love Thy Lawyer podcast and today I thought we would do something different. Have a round table discussion with a couple of practicing attorneys to discuss some of the issues that are in front of the courts these days. One attorney I'm speaking to is Nabiel Ahmed. Nabeel, welcome back to Love Thy Lawyer. You've been here before and we had a great interview. I think you were the first person that I actually interviewed for the podcast.

I also have attorney Matt Fregi on the line. And Matt, we do not know each other. This is the first time that we've met and it's a pleasure to have you and thank you so much for being here. Matt, let me start with you. Can you briefly tell us what sort of practice you have and how long you've been doing it and where you do it?

Matt 00:59

I do primarily criminal defense based out of Contra Costa County, but I go all over California. I'm actually beginning a trial in Lake County next Wednesday.

Louis 01:11

And where are you talking to us from right now?

Matt 01:13

Pittsburgh, my home.

Louis 01:16

Nabiel, how about you? Where's your practice? What sort of do you do?

Nabiel 01:22

Louis, good afternoon and thank you for having me again. It's certainly a pleasure and I'm glad to be here. My practice this in San Ramon, California. That's where I'm currently based out of right now. Also I have offices in Oakland, California, and that's where I basically started my private practice for 2008 to 2019. I consider myself an East Bay criminal defense attorney. That includes Alameda and Contra Costa counties and I've expanded my practice a little bit to cover areas slightly outside of just criminal law.

Louis 01:53

And where are you talking to us from right now?

Nabiel 01:56

Well, I'm in my office in San Ramon, California and right behind me as my patio and some of the lovely scenery, the trees that I have behind me. There's a, I believe it's San Joaquin Creek is right behind me and we have rooster, all kinds of wildlife. It's amazing. And when it hails, it's just absolutely beautiful out here because it looks like it's snowing and we have views of Mount Diablo as well. So, so it's, I love it here and happy here in San Ramon, California. I also loved Oakland, California. I'll probably be back spending half my time, you know, between locations.

Louis 02:31

Before we got on the call, we were talking about DUI cases. I do a lot of criminal defense and it seems that lately the two areas of law that I see the most are DUI and domestic violence. And it's interesting because the DUI cases are hard to win and the domestic violence cases are hard to lose and neither one goes to trial. So let me start with DUI.

On the DUI cases in general, you have professional police officer witnesses. If a defendant is driving under the influence and if the officer is properly trained, that case gets put together, it gets put together well from a prosecution point of view. And in my view, it is difficult to beat that case in court. Now I know there's plenty of attorneys out there that will differ with me on that and say that these cases should go to trial. They should all go to trial. You can't win a case that goes to trial. Every case that you plead is someone who's guilty. But I find it really hard to look a client in the eye and say, you know, bring in a substantial legal fee, let's try this case. When I really think that there really are no triable issues. And then you expose your client to the possible of doing some actual jail time if the judge is upset by the way the trial went.

Matt 04:11

it seems to me like the triable cases, I mean, there are some attorneys who have the science down and it's their niche, it's what they do. They specialize in it and most of them can, if you could try a DUI case you could try any case. But the triable cases that I've had for DUI, I've tried a couple, but the real triable ones, they tend to plead out recklessness. And at that point it doesn't make much sense to risk a trial when you can have essentially a dry offer with none of the negative repercussions that come with, except for the DMV points that come with a DUI conviction.

Louis 04:48

Nabiel, do you have a comment about the DUIs?

Nabiel 04:50

Yeah, absolutely. I believe the last DUI trial I had was a DUI causing injuries, significant injury. It was here in Contra Costa County and it was back in, I believe 2019. My client, he was at one point, he was a principal and at high school in Richmond, mainly an administrator type towards the end and I believe he had some affiliation with the athletic programs there. I think namely the football program. Unfortunately back, it was Halloween, I think 2018 that he was driving to his home after visiting Taco Bell and on his way home he was driving down one of these bane thoroughfares late at night with poor lighting and there happened to be a trailer park that happened to be on the left-hand side of the road, an open trailer park. And unfortunately, an individual who we believe who was under the influence at the time had rode a bicycle out of this particular trailer parking. It was a little bicycle, it wasn't a bicycle of regular size. My client was driving a larger truck and this man who was actually about my age now about Matt and ours, about 40 years old. And so basically this guy, you know, he's under the influence, he rides his gosh darn bike right in front of my client's vehicle and so my guy hits them, smacks them. Significant injuries, life-threatening injuries.

Nabiel 06:16

Unfortunately for this poor individual it was my client's first real offense. And his first and only offer was jail and jail and jail only. And, but as a misdemeanor, and so you know, I wanted to resolve the case, you know, it was like, "Hey buddy, 15 days, you can hang in there, right?" He was older, he was, you know, 70 plus and he just wasn't gonna do it. And I believe he got an offer from the judge who I did work with at the time at the Public Defender's Office, way back when, when I was clerking over there at Contra Costa county, I think he's just like, "Okay, sir, you know, you're not going to take this deal with this case is going to trial and best of luck."

Louis 07:05

So did you go to trial, Nabiel?

Nabiel 07:08

You say again, so not guilty friend, but anyways, so the guy gets off and then some of my kinder colleagues were saying, "Well, the jury just felt sorry for you, because..."

Matt 07:22

What was the defense?

Nabiel 07:24

Well, you know, deer crossing the road.

Matt 07:27

What do you mean?

Nabiel 07:28

Well basically the guy on the bike was just like a crazy deer running across the road, you can't really blame him for that. He was traveling within the speed limit. And then, you know, the guy was at a low eye level and he was, you know, obviously wasn't driving. He wasn't crossing at a crosswalk or anything. So legally he was just drunk, he was high. And unfortunately he wasn't caring for his own safety, the cyclist.

Louis 07:56

But what about your, what about your client? Was he drinking at the Taco Bell? The last time I was at Taco Bell, they weren't serving alcohol.

Nabiel 08:03

No, he was at a .10, I think a 101, something like that. And so it was, it was close. It was, it was real close. It was just a little bit over, a little bit over the limit. Maybe it's just a 10 even, the 1 0 1 1 somewhere around there.

Louis 08:17

And then the jury acquitted him of everything?

Nabiel 08:19

Everything.

Louis 08:20

Well you did a great job there, counselor.

Nabiel 08:23

Well, we'll thank you there, Mr. Goodman. Now here's the kicker, so everybody at home knows that, you know, probably part of the reason why this didn't work out for the prosecution is, and it's very tough. And a lot of times, you know, when you're trying a case and you're talking about the events and it goes back to trying DV cases, when you said that trying DV cases are hard to lose if you're the prosecution, maybe. But we'll talk about that. Hard to lose for the prosecution if you don't have to wait.

And so in this, in this particular case, the guy, he was homeless, addicted, whatever, injured, he never showed up for trial. But his mother did, his mother came and testified for him and described his injuries. That's how they proved great bodily injury, but we never had the guy. And I think that's what, perhaps, you know, the jury really kind of took the side of...

Matt 09:22

How did you finesse your way out of the percent count? The 23152(b) visa .10?

Nabiel 09:31

Yeah, we did do that. Excellent question. Excellent question. Excellent question.

Louis 09:36

Well, you were only at the trial, Nabiel. No one's expecting you to actually remember it. You know, for those of you who are listening to this, you know, it's audio only. But I can see, as we're sitting here speaking, the three of us can see each other on the computer and you know, you'll just look at Nabiel and you go, "How could you vote against that face?"

Now, let me just kind of continue with my thought here, since you've proven me wrong on my first thesis. But on the domestic violence cases, I say that they're hard to lose from a defense point of view, hard to win from a prosecution point of view, because most of the time the victims don't want to come to court. And when I was a prosecutor, it would drive me crazy that we, you know, we work these cases up. We had sometimes some, you know, relatively serious injuries and the victims would either not show up or they would come to court and ask the judge to dismiss the case. And you know, it would drive me crazy as a prosecutor.

Now, of course, as a defense attorney, you know, that's great leverage on the case because obviously if there's no witness, there's no case. And it just sort of makes me think about the whole domestic violence situation, because as a citizen and as someone who thinks about these things and kind of cares about people, I do see domestic violence as a huge societal problem, but it's also quite obvious to me that the criminal justice system isn't very well equipped to really solve that problem.

So I don't know. What do you guys think? Matt, let's hear from you.

Matt 11:38

Sure. I do think that the courts are ill-equipped in that it is, a lot of times it's obviously necessary. There are times when they're essentially imposing themselves in the private lives of people who, and they're doing it in a systematic fashion and I think a lot of it stems from the 1994 case, the old OJ Simpson case where you saw it would have definitely needed reform of the domestic violence laws. But as what happens and a lot of the times they over-correct. So now there is no nuance. It's, you know, they have to arrest somebody if they respond to the scene. The 097 terms, they're unforgiving. And so a lot of times I do think that they end up causing as much problems as they solve, the law as it is now. And, but again, it's a necessary evil because the flip side of that is there is a cycle of abuse and people do end up getting hurt and things do end up progressing.

Louis 12:38

Well, let me just follow up and ask about this. There used to be something called domestic violence diversion, and that was something that OJ, as a matter of fact, had taken advantage of, had successfully completed the misdemeanor domestic violence diversion program on an earlier incident and then of course was arrested, acquitted on the murder of Nicole and the other gentleman who was there, Goldman, and that did change the law because people were just so outraged about what had happened. Do you think that maybe going back to some sort of domestic violence diversion program would make some sense?

Matt 13:18

Diversion to some extent, yeah, I do in only that domestic violence will, you know, scarlet letter for an, until you obviously through your 12034, but I do believe they should still have their pound of flesh. But the fact of the matter is we have elected officials sitting as judges and we have an elected official at the DA's Office. And so everything is going to err on the side of caution. So even people that don't necessarily know all of the stringent repercussions and then get swept up in it.

Louis 13:49

Nabiel, you got any thoughts about this?

Nabiel 13:51

Yeah, I think that the courts actually, courts and the DA's Office and the attorneys are in a pretty good position to judge what's going on. And I think that the amount of cases that they see and the variety of the types of domestic violence that they see does give them, put them in a unique position to being perhaps some of the best judges in terms of what should happen to a particular individual who is perhaps convicted of domestic violence or what should happen to an individual who may have been engaged, arguably in an act of domestic violence and maybe they just should or should not necessarily be run through the criminal justice system just yet. And domestic will not go away at any point in time.

Louis 14:35

So Matt, you have been in a couple of trials recently. Can you, without revealing any state security secrets, tell us what you've been trying and how that's been going for you?

Matt 14:47

Sure. I just finished a two victim child molest. What it was essentially was spanning over 25 years. What were some interesting issues? One of the victims came forward when she was 16 about to be 17, and said, "Mom, I've been molested since I was 11." And then it kick-started the case. They interviewed her, obviously, got her statements, multiple statements. Got a forensic exam done on her and gathered some evidence there.

And then the client was affluent so they posted an ad in the paper, stating in a flier and press release that if any other victims are around please come forward. This gentleman had access to thousands and thousands of children over the past 25 years and out of the thousands and thousands, one came forward from 25 years ago with a story somewhat similar to the recent one. And in the interim winding its way to trial, the most recent victim passed away. So there was some legal issues for the case, not too great factual issues. And obviously the main one was the confrontation clause issues so all other statements were excluded to deceased victim. Went to court and lead in the original statement to her mom, "Mom I've been molested since I was 11" and it was six charges based off that one statement and three charges with the Jane Doe from 25 years ago.

Louis 16:17

What did the jury do?

Matt 16:19

There really wasn't much of a defense fruit for Jane Doe 1, the first one to come forward. With her statement my client, had a three hour interrogation. It didn't go so well for him, at that time, they had her DNA on his body and there was some text messages, so that that's that's grim, but he's got a great appellate issue there. The Jane Doe 2, the defense ended up being that she wasn't, the statute of limitations requires her to be 13. There's only certain crimes that survive a 25 year statute of limitations. And those are the crimes involving the child 14 or under, actually under 14 I should say. And so, during the course of trial it was revealed by the lead detective that either he or one of his fellow detectives told this young lady before interviewing her that we only care about crimes that occurred when you were 13. And so she tailored her story to refer to two instances when she was 13, halfway through, it was somewhat revealed that one of them occurred when she was 14. And so the jury went to deliberate and then they sent back a question that was kind of abstract as to the law and timing. And then the next note came, one of the jurors went home and did some independent research. So we almost had to declare a mistrial. They salvaged it, I suppose. And then they convicted him, but you know, he's got some really interesting appellate issues.

Louis 17:48

Have you had sentencing yet?

Matt 17:50

No, that will not be for...

Louis 17:55

Was there any kind of pretrial offer that?

Matt 17:57

Yes there was. Credit for time served, go home and this gentlemen turned it down.

Louis 18:03

Why? Do you know why he turned to town? I mean, did he give you a reason?

Matt 18:09

Yeah, he's not a citizen of the United States and he, immigration consequences concerned him. And so that was the reason.

Louis 18:17

You know, the only case that I ever really lost and I mean, just like really lost was a child molest case where I was offered credit for time served, not even credit for time served, no time, just, you know, plead, register, do some counseling, no time. And my client turned it down because he was kind of like a sports coach and he wouldn't be able to coach anymore. It wasn't his profession, it was his avocation, but he really enjoyed doing it. And, you know, maybe for obvious reasons. And the, and we tried that case for six weeks and it was, you know, a very, very serious defense. And at the end of the case, the jury went out, had lunch, came back, convicted of everything and short point a long story the judge gave him 18 years in state prison.

Matt 19:13

I think he's going to fare better than my client does. But I do think my client has as a very, he's going to have a very good day on appeal, but our judge basically, during pretrial motions said things along the lines of, "your client has been preying on young women for 20 years." and "Your client is lucky that this young lady is deceased" and things of that nature. So we kind of knew that, you know, the presumption of innocence from the judge's perspective had gone out the window very early on. So I think what's going to happen sentencing wise is a foregone conclusion, it's a life case, obviously.

Nabiel 19:48

Yeah, those are tough, Louis. That's tough. 18 years, that's tough.

Louis 19:52

From no time.

Matt 19:53

How many victims were you dealing with?

Louis 19:55

Just one. Just one.

Nabiel 19:58 

What about the evidence against him? Was there a pretext call or anything along those lines?

Louis 20:03

No. The evidence was really thin. He came forward three years after the alleged incident. There was no pretext call. My client did not give a statement. It was kid came in and he was just a good witness, very believable, jury really liked him. And that was that.

Matt 20:21

Well, I found what was toughest about this case was that Jane Doe two, despite the fact that it was clear that she was lying about her age, really had no ax to grind. There was no reason for her to come in after 25 years and make these accusations against my client. I couldn't think of any potential motive for her to do that, to attack her. However there was, it's interesting, there was some impeachment material with regards to this Jane Doe, where she would go into car dealerships and sit down with the sales manager, negotiate for a car, agree to pay a large sum down payment, obtain dealer financing, would write a fraudulent check to the car dealership, obtain financing using fraudulent information and drive off with the car. And she did that twice. One time, the car was impounded by the police, this young lady, when she was a young lady, went in and attempted to get the car back from the police. And then when she was asked about this during the current investigation, was untruthful and the court would not allow us to either bring up the fact that she was untruthful with the detective about her past or get into the fact that this was the title of prevaricator she was so she's definitely capable of coming into a court of law and telling lies.

Nabiel 21:35

Matt, do you, sorry to interrupt. Do you, and I was asking you this Louis, but do you hear from that client that's been incarcerated over, you know, that got that 18 year sentence? Do your clients that get those long sentences stay in touch? Some of mine do. And whether you like that or not? I don't know.

Louis 21:54

Well, he's out now and I have not heard from him since he's been out. I am grateful about that. He was very angry with me after the case was over and...

Nabiel 22:06

Not talking him into taking the deal? Not being more persuasive about taking the...

Louis 22:12

I spoke to him every single day of that trial about taking the deal and tried to get the district attorney to do something for him but it just wasn't happening. And I don't know, I just, I learned a real lesson there about, you know, some of the dangers of going to trial. Well, speaking of which, you know, how do you sort of evaluate whether to plead or to go to trial? What do you think, Nabiel?

Nabiel 22:40

In the beginning it was weird. I used to always feel pressured by a client to go to trial, I think. Some judges pointed out: client control. They told me client control. And I always thought, I do have client control, I'm really telling these guys. I'm really telling these guys, you know, let's work this out, let's take a deal. But in the beginning I got pushed a lot, I think because the clients in this field, most clients that will be dealing with attorneys have some base of knowledge before they come to deal with the attorney. And so I had found that the type of clients that I was getting, especially in the beginning of my career, were I don't want to say professional criminals, but close to it. And they really knew the business and they know the law! And oh my God, do they know the law and they know it well! And so they test you, every phone call, every conversation, every time you talk to them, "But can you do this? Can you do this? Can you do that? Blah, blah, blah." What about this, that? Did you file this motion? Where's my discovery? This, that the next thing. And they, I was pushed into jury trials quite, quite frequently into the beginning of my career. I didn't want to, I mean, I did, I didn't...

Louis 23:54

But Nabiel, I mean, ultimately, ultimately whether to plead or to go to trial is a client decision. It's not really an attorney decision, but having said that, I think that there is a lot in terms of clients looking to us for some guidance about what they do.

Nabiel 24:14

I think it's if they think they could win the case, if they have that confidence and maybe I guess them up too much too, but yeah, if they had the confidence to believe that they could win a case, they're going to take advantage of that. So if you set the standards appropriately in the beginning, I think that most clients will choose to settle as opposed to litigate, but sometimes you just don't have that choice.

Louis 24:41

What do you think, Matt?

Matt 24:43

Me personally, or with the clients?

Louis 24:46

Well, I mean, how do you evaluate whether a case should plead or whether it should go to trial? What do you talk to clients about in terms of that? And what sort of feedback do you get from clients? I mean, I know every case is different, every client is different, every attorney-client relationship is different, but I wonder if you just have a sense of it, you could give us?

Matt 25:07

Well, if I feel that I can make a credible argument for this case, this case was an anomaly, the one that I just tried, it was a legal case. There were no real factual origins, but cases that I typically try, I do have a factual defense. And if I can stand up and say that to my clients, like, Hey, you know, this is what we'll show you throughout the course of this trial. Then I will leave it up to my client. I never blow sunshine or suggest that conclusion is foregone, that we're going to either win or lose, but I will strongly dissuade clients from trying cases where I don't feel I can make a closing argument.

Nabiel 25:53

Louis, can I clean up my answer real quick?

Louis Goodman 25:55

Sure.

Nabiel 25:56

No, no. I just want to say, in terms of trying a case, whether to try a case or not to try a case, how do you settle a case? How do you know when to settle a case and not to settle a case? These days for me, and I think in the past too it's always been, I asked my client, can you live with this particular result not just now, but in the future. And if I know that they are okay with taking 18 years pleading guilty, you know, and taking 18 years or whatever the case may be, if they could live with that now, and they could live with it on the future, then take a deal. If they cannot live with it and I can't come against them that there's no other better way than we have to go to trial.

Louis Goodman 26:34

Yeah, well, I mean, I have my own things where I wake up in the middle of the night second guessing myself. I recently had a case, you know, perhaps not unlike yours, Matt, where my client had some immigration issues. It was a child molesting case. The way the case was charged, it was a life top. I got an offer to plead to a three-year top, you know, registrable deportable offense, but a three-year top. And the judge ultimately gave him two years on that sentence and you know, so he'll be out, you know, probably by Christmas or whatever. And you know, whether he's out in another country or he's out here, I guess depends to some extent on immigration, but you have to wonder about that and you think, well, you know, could I have torn that witness apart at preliminary hearing? Could I have convinced a jury something different? And the problem is that you turn down a three-year top and you go for a life case, you might end up with a life sentence. It's scary, you know, I mean, this business is scary and it's hard. And I think that sometimes people don't realize it or they watch TV and they think it's just some game or something, but you know, we have people's lives in our hands. I just feel the weight of that responsibility sometimes as a very heavy burden.

Nabiel 28:04

Yeah. Well, Louis, don't your clients express that to you? I mean, they a lot of times don't they put that into the forefront of your communications? Like Louis, I'm trusting you with my life. I'm sure you must have heard that more than before somebody wrote you a check for 15, 20, whatever the case may be, you know, before they gave you a nice retainer to say, save me, right? Or what can you do for me?

Louis Goodman 28:27

Well, I don't get the kind of retainers that you do Nabiel, but I don't know. I mean, clients, I can't say that I've had a lot of clients say that to me, but I feel it, you know? I feel it, Matt, anything else on that?

Matt 28:39

Yeah, no, just briefly the thing that I'll tell them is, you know, you've got a five-year offer or whatever it is, subtract a good sum, if it's not a violent crime, but not that much, and just ask him, you know, when that day comes are you be okay having to spend longer than that and you know that day, you're going to kick yourself in the ass that day if you're convicted. That's the day, you know... And that's their personal choice. Some people don't, some people just have an impossible time with accountability. I see it a lot more in the end with child molest cases.

Louis Goodman 29:18

Yeah. They're the worst. They're the absolute worst for me.

Matt 29:21

I remember a difficult time. Yeah and they, honestly, I'm not sure whether they don't believe they should be punished or they just can't grasp the fact that they did what they're being accused of because a lot of times they despised child molesters and as much, if not more than the rest of society. So I don't know what the psychology is with them, but yeah. And then you have people who just don't want to be held accountable for what they did, but it's ultimately their choice. But again, as far as I'm concerned, if I can't get behind their case of from trial perspective. I'm not gonna be the one, I'll pass to somebody else about give them back the entire retainer as well.

Louis Goodman 30:04

Yeah, let's talk about that for a minute because I've lately given back a number of retainers. Full refund. I've called the client and I've said, "You know, I just think that you need to find an attorney who may be a little better fit for you. I want you to find a new lawyer. I'll give you back every dime you've paid me. I wish you the best of luck in this situation, but I do not feel that I'm the right lawyer for you in this circumstance." And I'll tell you, I'll tell you a quick story about the last time I did that. I had a client charged with some very serious felony cases. The District Attorney around Christmas time, just basically I think, made a mistake and said, well, if he goes to some counseling, we'll give them a one-year deferred prosecution.

Nabiel 30:57

It was a Christmas offer. They’re real.

Louis Goodman 30:58

It was a Christmas offer, you know? And I call my client. I go, Hey, yeah, there, we get a sweet deal. And he goes, "I'm not doing that. I am not doing that." And he says, "Well, because going to counseling it's like admitting guilt and I'm not admitting guilt." I said, "No, no, you're not admitting guilt. It's not even a deferred entry of judgment, it's just go to some counseling. Everyone could use some counseling. I could use some counseling. You know, let's, let's just kick it a year and do some counseling and we'll get it dismissed." And he absolutely wouldn't do it. I said, "Fine. Find a new lawyer. I'll give you your money back." How can I do any better than that? I mean, how can you, you know?

Nabiel 31:38

That's rough. Essentially, the guy's asking for a trial. He's just not aware of it.

Matt 31:49

If that client were mine and it was a case and I thought that there was legitimate issues, I'd have no problem taking this money and... you know, I mean, because he's stubborn and, you know, in case such that he turned that down and he's an idiot for that, regardless of confidence paying out in the long run. But you know, if it's a case that's triable, I mean, was it not a triable case?

Louis Goodman 32:10

In my view it was not a triable case.

Matt 32:13

Yeah. Then I would punt too, I would not do that. I would not walk somebody to their funeral when they have a get out of jail free card. And I say that in the wake of my trial, where my guy had a generous offer and now he's to be sentenced to life.

Nabiel 32:28

It is those stubborn clients that actually wind up becoming the most memorable cases because it's those stubborn clients that make us do the most work and where we have to sometimes find creative legal arguments, because those stubborn guys just won't leave you alone. And I don't know why sometimes I have clients like that, but I can count on that. Every couple years or so I will have a client who knows how to stay in contact with, who attempts to stay in contact with me 24 hours a day or close to it. And they are highly educated, they're very intelligent and they kind of pretend to help me with the work. So I will just go with it, but those cases just stick with you. And I can think of a lot of the cases I can remember is because the client was stubborn and the case wasn't resolved. And we were forced to just uncover every stone to make that step in person go away.

Matt 33:37

I've had at least 50 calls from people in custody who have heard from other people in custody or read these things themselves, that there's all these new laws that that apply to every single case. And, you know, that are going to benefit them significantly. And I'm like, sorry to tell you buddy, but it's not retroactive in that, in that regard.

Louis Goodman 33:57

Let me move on to another issue, which is right now in Alameda County, we have four individuals who are running to be district attorney and come January 1st, 2023, we are going to have a new DA in Alameda County and all four of them claim to be progressive-minded candidates and say that they will be progressive district attorneys. Now, Matt, you practice in a jurisdiction where there is someone who claims to be a progressive-minded district attorney. And I'm wondering how you think criminal prosecution and the court system is going to look like going forward if we do in fact get a progressive-minded DA or will we even though that's kind of what they're advertising themselves as?

Matt 34:57

I think that they have to build themselves as progressive, even if they're not just because you know, where we're located. And you know, in Contra Costa at the last election, Paul Graves who was beloved within the District Attorney's Office. And I mean, and without, I mean, people really respect him, but you had Diana Becton who was a great judge and a good DA, I think, but she's obviously very progressive.

Louis Goodman 35:23

How is that manifested-self in Contra Costa County?

Matt 35:27

You know, it depends on who you ask. I honestly have no grievances with the way things are being run right now, but I'm also not in the actual DA's Office. So here there are, you know, there's always factions that are going to complain about the powers that be and there are people who are very happy with the way things are. I don't think we filed a death penalty case since DA Becton took over. But I, again, I'm fine with that because death penalty cases are illusory in California anyway, really.

Louis Goodman 35:56

You know, I have a comment about the death penalty while we're at it, and then I'll get back to you, Nabiel. You know what my beef with the death penalty is? It's not so much that I don't think that there's certain murderers who deserve the death penalty, but what I really object to is that these dreadful, dreadful criminal are made into martyrs. And all of a sudden you have people who should be considered criminals, be locked up for the rest of their lives and then the government wants to take their life and they become heroes and martyrs. And that's what really offends me. That's why I'm against the death penalty.

Matt 36:45

Too narrowly against the death penalty. They're just more against them at the death penalty does to people who deserve it.

Louis Goodman 36:52

I mean, I don't think the death penalty does anything in terms of deterrence. I've done a lot of research on this. I don't think it has anything to do with deterrence. I don't think anybody thinks about it. I think it's indiscriminately and applied and I think that, you know, clearly there's this terrible racist factor to it if you look at the whole country and in California, the death penalty is basically a moot point anyway. So the fact that a death case hasn't been filed, you know, I don't find particularly interesting one way or the other. But I mean I'm just appalled by the way people put these criminals on pedestals only because of the death penalty.

Matt 37:36

My problem with the death penalty isn't with the death penalty itself either, but it's just obviously imperfect. And when the Innocence Project came to fruition, there were a lot of people exonerated off of death row.

Louis Goodman 37:48

Yeah. That's the huge one, that's the big, that's the big thing. Yes.

Matt 37:51

That's obviously a huge problem because if you know, there's mistakes made and innocent people are in jail all the time, but that's, you know, when you can't ever take back and that's the problem. So, you know, people say when guilt is without doubt or they've confessed, whatever, but even confessions we find out are there are fallible in some instances. So it just doesn't make sense for me that as a civilized society, we need to put people to death.

Louis Goodman 38:18

Nabiel, what’s your take?

Nabiel 38:22

Yeah. You know, in terms of the martyrdom issue, I was trying to think of a famous example of that. That's why I was a little bit stumped, but I know, what really jumped out to me were, my thoughts were these guys are spending 20, 30 years on death row, just the daily torture of kind of having that data finality, where these guys are thinking, ok, June 3rd, 2025. That's it!

Louis Goodman 38:50

What's your notion about progressive prosecution going forward? I mean, aside from the death penalty, there's a lot of other things.

Nabiel 38:57

We had progressive prosecutors, in the Bay Area for decades now.

Louis Goodman 39:02

I think Gascón was clearly a progressive prosecutor and I would argue that even though she didn't really bill herself as such, or doesn't really bill herself as such, I would argue Nancy O'Malley is somewhat of a progressive prosecutor.

Matt  39:18

I'm willing to say that too but I'm not familiar enough with what's going on in Alameda. But I would say, yeah, she doesn't strike me as an extreme conservative.

Nabiel 39:31

Here's something that I have noticed, on St. Mateo County, Santa Clara County, where it's less progressive prosecution. Crime is less noticeable, homelessness is less noticeable. Those minor crimes are less noticeable. It's those cities are a little bit easier sometimes to feel safe in perhaps. San Jose is a big city, it's one of the biggest cities out there. You feel different walking, you know, of course you don't walk down the streets of San Jose for fun, perhaps, but you know, you walk downtown San Francisco and before COVID walking downtown Oakland is dangerous. So any prosecutor that we do get, I hope recognizes we can be progressive. And our policies in certain ways, in terms of how much we prosecute people for crimes that we say are beyond their control, such as, you know, you need to steal to eat and survive. I don't really think we see that that much, but...

Matt 40:39

Right now in San Francisco, cause they're saying that in San Francisco now they don't and this is what I heard and I haven't done any research personally, but they don't prosecute shoplifting anymore? And I can't imagine that that's true, but that's what I heard. Is that accurate? Is that what you're referring to?

Nabiel 40:55

Yeah. You know what I mean? It makes it harder. You know, it makes it harder than... I have clients, my clients are store wranglers, okay? And so when they're getting shoplifted from, and they're lawfully allowed to carry a firearm behind the register.

And you're not going to go ahead shooting everybody that's stealing from the store or shooting everybody that's crazy and on drugs and causing commotion and vandalizing havoc, you know, destroying that $150 worth of property or less or more within their store. That creates issues, real issues for, for my clients who really are looking to just make a living, protect themselves and we have to deal with, they have to deal with a little bit more. They think they themselves have to become the police in essence, and to effectuate a citizen's arrest to protect themselves and their property. And we haven't found that balance yet. And in this county or in any county, apparently when we have these progressive prosecutors, so, I don't know, I'm all for progressive prosecution, so be it. But you're going to have to work out both sides of it to protect everybody's whose interests need to be protected. Be progressive all you want, but people need to be protected all around.

Louis Goodman 42:05

What I'm hearing you say, Nabiel, is if I'm representing the client, be progressive. If I'm the citizen walking on the street, I want some serious prosecution here. And on that note, I think we're going to have to wrap this up. We had a really fun talk. I've enjoyed doing it.

Matt 42:24

I feel like we solved most of society's problems today.

Louis Goodman 42:27

Absolutely. Matt Fregi, thank you so much for joining Nabiel and me today on the Love Thy Lawyer podcast. Nabiel, thank you so much for being here.

Nabiel 42:40

Louis and Matt, thank you. We'll see you in court, guys.

Matt 42:42

Thank you very much for the invitation Nabiel and thank you very much for having me, it was a pleasure.

Louis Goodman 42:48

That's it for today's episode of Love Thy Lawyer. If you enjoyed listening, please share it with a friend and follow the podcast. If you have comments or suggestions, send me an email. Take a look at our website at lovethylawyer.com, where you can find all of our episodes, transcripts, photographs and information.

Thanks to my guests and to Joel Katz from music, Bryan Matheson for technical support, Paul Robert for social media and Tracy Harvey. I'm Louis Goodman.

Nabiel 43:24

There's always room for the wrong person to get caught up, but that's why we have a system.